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Tuesday, December 14, 2010

Dec 13: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-5761, appealed from the Eastern District of Kentucky at Lexington. As explained by the Appeals Court, Plaintiffs-Appellants Heartwood, Inc. and Kentucky Heartwood, Inc. (collectively Heartwood) are non-profit corporations active in forest and species protection. Heartwood appeals the district court's judgment granting Defendants-Appellees Elizabeth L. Agpaoa, the Regional Forester for the Daniel Boone National Forest (Forest), and the U.S. Forest Service (collectively Forest Service) judgment on the administrative record. Heartwood claims that the Forest Service enacted the 2004 Forest Plan (Plan) for the Forest in violation of the procedures mandated by the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA).

Specifically, Heartwood alleges that, in promulgating the Plan, the Forest Service failed to consider a "no commercial logging" alternative and account for the environmental effects of herbicide use through an environmental impact statement (EIS). Heartwood also challenges the Forest Service's environmental assessment (EA) for the 2003 Ice Storm Recovery Project (Project) in the Forest, undertaken pursuant to the Plan; on this issue, Heartwood argues that the EA inadequately addressed the effects of herbicide application in the Project. Heartwood brings these claims against the Forest Service, a federal agency, under the Administrative Procedure Act (APA).

The Appeals Court reversed the district court's judgment which denied Heartwood's motion and instead entered judgment in full for the Forest Service; and remanded the case to the district court with instructions to "dismiss for want of jurisdiction." The Appeals Court said, "Unfortunately, Heartwood seems to have lost sight of the forest of constitutional standing for the trees of associational and agency standing, and it fails to allege with adequate specificity the central element of injury in fact"; andruled, "Heartwood's standing affidavits are too general in their identification of 'site-specific activities [that] diminish[] or threaten to diminish their members' enjoyment of the designated' forest sub-sections, so Heartwood does not have standing to maintain this action." The Appeals Court cited Ctr. For Biological Diversity v. Lueckel, 417 F.3d at 537 (6th Cir. 2005).

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